FEDERAL COURT OF AUSTRALIA

Construction, Forestry and Maritime Employees Union v Sydney International Container Terminals Pty Ltd [2025] FCAFC 19

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KATZMANN J

1    With certain exceptions, s 470 of the Fair Work Act 2009 (Cth) (FW Act or Act) prohibits employers from making any payments to employees who engage in protected industrial action where those payments are “in relation to the total duration of the industrial action” taken by the employees. Section 471(4) stipulates that, provided the employer complies with certain notice requirements, an employee engaged in industrial action consisting of a partial work ban is not entitled to any payments in relation to “the industrial action period”.

2    This appeal challenges a judgment in a proceeding brought by the Construction, Forestry and Maritime Employees Union (Union) seeking various forms of relief, including compensation and pecuniary penalties for alleged contraventions of the FW Act. It arises out of protected industrial action taken by a number of employees at the Port Botany and Port of Brisbane container terminals. The action in question involved failing or refusing to work rostered shifts over a seven-day period in June 2021. The Union contended that by failing to pay the employees for those shifts, their employers (the respondents) contravened the Sydney International Container Terminals Pty Limited and Brisbane Container Terminals Pty Ltd and Maritime Union of Australia Enterprise Agreement 2015 (the Agreement), which covered the respondents and their employees, and therefore s 50 of the Act, which provides that a person must not contravene a term of an enterprise agreement. The Union also contended that, by their actions the respondents also contravened s 323 of the Act, which relevantly provides that an employer must pay an employee amounts payable to the employee in relation to the performance of work in full subject to any deductions permitted by s 324. The permitted deductions include deductions authorised by or under a law of the Commonwealth: s 324(1)(d).

3    The Union’s argument was based on an interpretation of the relevant provisions of the enterprise agreement which the primary judge rejected. In the appeal the Union contends that the primary judge misconstrued both the enterprise agreement and misconstrued or wrongly applied ss 470(1) and 471(4). For the reasons that follow, I reject the Union’s contention.

The relevant statutory provisions

4    “Protected industrial action” is defined in s 408 of the Act to mean, in substance, industrial action taken “for a proposed enterprise agreement”, that is to say during bargaining for a proposed enterprise agreement, provided that it meets certain conditions. “Industrial action” is also a defined term. The definition appears in s 19. Subject to certain exceptions which are irrelevant for present purposes, the definition includes “… the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on … the performance of the work” (s 19(1)(a)), “a ban, limitation or restriction on the performance of work by an employee …” (s 19(1)(b)), and most pertinently, “a failure or refusal by employees to attend for work …” (s 19(1)(c)).

5    Section 470 reads as follows:

Payments not to be made relating to certain periods of industrial action

(1)    If an employee engaged, or engages, in protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day.

(2)    However, this section does not apply to a partial work ban.

Note:    For payments relating to periods of partial work bans, see section 471.

(3)    A partial work ban is industrial action that is not:

(a)     a failure or refusal by an employee to attend for work; or

(b)     a failure or refusal by an employee who attends for work to perform any work at all; or

(c)     an overtime ban.

(4)    If the industrial action is, or includes, an overtime ban, this section does not apply, in relation to a period of overtime to which the ban applies, unless:

(a)     the employer requested or required the employee to work the period of overtime; and

(b)     the employee refused to work the period of overtime; and

(c)     the refusal was a contravention of the employee’s obligations under a modern award, enterprise agreement or contract of employment.

(5)    If:

(a)     the industrial action is, or includes, an overtime ban; and

(b)     this section applies in relation to a period of overtime to which the ban applies;

then for the purposes of this section, the total duration of the industrial action is, or includes, the period of overtime to which the ban applies.

6    Section 471 relevantly provides:

Payments relating to partial work bans

…

Employer gives notice of non-payment

(4)    If:

(a)    an employee engaged, or engages, in protected industrial action against an employer on a day; and

(b)    the industrial action is a partial work ban; and

(c)    the employer gives to the employee a written notice stating that, because of the ban:

(i)    the employee will not be entitled to any payments; and

(ii)    the employer refuses to accept the performance of any work by the employee until the employee is prepared to perform all of his or her normal duties;

then the employee is not entitled to any payments in relation to the period (the industrial action period) referred to in subsection (5).

…

The industrial action period

(5)    The industrial action period is the period:

(a)    starting at the later of:

(i)    the start of the first day on which the employee implemented the partial work ban; or

(ii)    the start of the next day, after the day on which the notice was given, on which the employee performs work; and

(b)    ending at the end of the day on which the ban ceases.

…

7    Sub-regulations 3.23(1), 3.23(3) and 3.24 of the Fair Work Regulations 2009 (Cth) prescribe the contents of a notice for the purpose of s 471(4) and the manner in which such a notice must be given.

The relevant facts

8    All the relevant facts were agreed or not in dispute. For present purposes it is unnecessary to refer to all the agreed facts. To understand the context in which the dispute arose, it is sufficient to note the following matters.

9    On 6 June 2021 the Union gave each of the respondents notice under s 414(2) of the FW Act that their respective employees who were its members would take protected industrial action, including action involving failing or refusing to perform work. The industrial action was “employee claim action” within the meaning of that term in the Act. The action was taken after a protected action ballot was conducted in support of claims for a proposed enterprise agreement to replace the Agreement.

10    On 11 June 2021 each of the respondents issued a written notice to employees in stevedoring operations at the container terminal where they were employed, who were members of the Union and to whom the Agreement applied stating that, if the employee chose to engage in a partial work ban in the employee claim action as notified:

(1)    the employee would not be entitled to any payment for any day on which the employee engaged in a partial work ban;

(2)    it refused to accept the performance of any work by the employee until the employee was prepared to perform all of his or her normal duties; and

(3)    it would not pay the employee during the period of the employee claim action, including any day on which the employee engaged in a partial work ban.

11    As at 12 June 2021, each of the relevant Port Botany employees had worked at least 1501 hours and each of the Port Brisbane employees had worked at least 1560 hours since 1 July 2020.

12    Critically, there was no dispute that, during the period from 12 to 19 June 2021:

(1)    the employees in question were each rostered to work an eight-hour shift on one or more of the days in that period;

(2)    those employees took protected industrial action by failing or refusing to work their rostered shifts and were therefore not ready and willing to do so; and

(3)    the respondents refused to pay those employees for eight hours at the Level 1 ordinary rate in respect of each shift they failed or refused to work.

The Union’s position

13    In short, the Union’s argument before the primary judge was that under the terms of the Agreement the relevant employees were entitled to be paid for any hours worked in excess of 1560 hours over the previous 12 months (or 1501 hours in the case of the Port of Botany employees), regardless of whether they were rostered to work and refused to work, and neither s 470 nor s 471(4) precluded the making of those payments.

14    As the primary judge observed at [54] of his reasons, the Agreement did not expressly provide that, once an employee worked 1560 hours (in a year) they were entitled to be paid for the rest of the year regardless of whether they performed any work or were willing and ready to do so. The Union’s argument was based on a particular interpretation of certain of the Roster Rules contained in Sch 4 to the Agreement.

The relevant provisions of the Agreement

15    Clause 6.1.1 relevantly provided that an employee covered by the Agreement will be employed as a full time employee engaged as such for an average of 30 hours per week in accordance with Sch 4.

16    Clause 15 dealt with remuneration.

17    Clause 15.1 relevantly provided that employees had to be paid at the Level 1 ordinary rate set ($42.45 an hour for full time employees) in accordance with the rostering details set out in the table entitled “Phase 1 Roster” which appears at the beginning of the Sch 4.

18    Clause 15.6 provided that overtime for any shift extensions or additional shifts worked after the requisite number of annual roster hours have been worked shall be paid at the secondary time rate applicable to the level for the role performed on the extension or additional shifts concerned and paid in accordance with cl 17.

19    Clause 16 dealt with allocation of employees and working arrangements.

20    Clause 16.1 provided that the respondents “will at all times be able to roster and allocate any employee individually in a flexible manner in accordance with the arrangements in this Agreement”.

21    Pursuant to cl 16.2 employees were relevantly required to “work in accordance with the arrangements detailed in … the roster and related rules in [Sch 4] …”.

22    Clause 16.3 stipulated that normal working shifts were eight hours in duration.

23    Clauses 16.5 and 16.6 identified when notification of work requirements would be available for each of the two terminals.

24    By cl 16.13 the Union and the employees “guarantee[d] to provide sufficient employees to conduct all operations when required by [the respondents], subject to arrangements for pre-approved leave and public holidays …”.

25    Clause 16.17 provided that where an employee was “unable to attend work for an allocated shift, they should notify the [respondents] as soon as practical so that a replacement [could] be sourced if required and disruption to work [was] minimised”. Clause 16.18 provided that if the respondents were not notified of an employee’s “inability to attend for work before the commencement of the shift” the respondents would treat the absence as a “Fail to Report” which would be “dealt with under the [respondents’] absence management procedure.”

26    Clause 17 dealt with overtime.

27    Clause 17.2 provided that “employees may be required to work a reasonable amount of overtime to meet operational requirements …”. Clause 17.8 set out the rates at which extensions of rostered shifts were to be paid (that is, work in excess of eight hours) and cl 17.9 described the rates at which “[e]xtensions and hours worked beyond 1560 hours” were to be paid. Evidently the figure of 1560 was derived by multiplying 30 hours per week by 52 weeks.

28    It is true, as the Union submitted, that the secondary time rate was lower than the ordinary time rate. For work performed after the 1560-hour threshold was reached, however, the rates ranged from double the secondary time rate for Monday to Saturday shifts; double time and a half for Sunday, evening and public holiday day shifts to triple time for public holiday night shifts: see cl 17.9. Consequently a day shift worked after the employee had crossed the threshold would be paid at a higher rate than a day shift worked before the threshold was reached. For example, on and from 1 March 2018 the Level 1 ordinary rate for full time employees was $42.45 per hour (cl 15.4) whereas the effect of cl 15.6 (read with cl 17.9) is that the lowest secondary rate payable for full time employees who had exceeded the 1560-hour threshold was $66.56 per hour (being double the amount provided for in cl 15.7) and the highest was $99.84 (being triple the amount provided for in cl 15.7).

29    The relevant Roster Rules were contained in Sch 4. These were rules applying to the roster for “Phase 1” which was set out at the beginning of Sch 4. It rostered employees to work according to the panels to which they were assigned. The salient part of Sch 4 reads as follows:

In addition to the provisions of Clause 16 (Allocation and Working Arrangements), the following allocation rules will apply to this roster, subject to skills:

1.    Employees shall work 1560 hours annually, and are available to be allocated to shifts in accordance with the roster, subject to any agreed leave arrangements.

2.    The annual hours are based on a 30-hour week and include leave counted at 30 hours per week (annual leave) and 8 hours per day (personal leave and accrued days taken).

3.    Employees will be paid 30 hours at the Level 1 ordinary rate each week, plus any higher duties payments for any shifts worked in the week, plus any shift premiums applicable to any shifts worked in the week plus any extensions or preparatory/closing work performed in the week, plus any leave as noted above.

4.    Once the 1560 annual hours have been worked in any year, the employee will be paid 30 hours at the Level 1 ordinary rate each week, plus the applicable overtime rate for each shift worked in the week, plus any extensions or preparatory/closing work performed during the week.

…

18.    Annual hours shall recommence and shall be zeroed on July 1 of each year.

“Extensions” was shorthand for “end of shift extension”: see cl 16.10.

30    The parties agreed that roster rule 3 applied in the period before an employee had worked 1560 hours in any one year.

31    On 15 June 2020, the 2015 Agreement was varied by adding a schedule. That was Schedule 10–Covid 19 Pandemic Arrangements (Sydney). Clause 3 of Sch 10 amended the Roster Rules so as to reduce the number of hours employees of the first respondent had to work to meet the threshold by substituting a figure of 1352 but allowed the threshold (or “target” as it was called there) to be “pro-rated in response to Schedule 10 ceasing to have application upon Relevant Employees in circumstances where the remaining hours worked would otherwise revert to the Enterprise Agreement”. Apparently, the pro-rated annualised hours of work target for the Port Botany relevant employees for the year commencing from 1 July 2020 to 1 July 2021 was 1,501 hours (J[31]). That accounts for the difference in the thresholds for the two cohorts of employees with which this case is concerned. For convenience, the primary judge generally referred to the 1560-hour figure (J[44]) and I will do likewise. It was common ground that his Honour’s reasons apply equally to those employees whose threshold hours were lower.

The reasons of the primary judge

32    The primary judge rejected the Union’s submission that the phrase in roster rule 1 that “[e]mployees shall work 1560 hours annually” indicated that they were not required to work any more than 1560 hours in the year and that any additional work they performed was voluntary. He accepted that that was an arguable interpretation, but cautioned that it was necessary to have regard to the context, including the rest of roster rule 1 and the Agreement as a whole (J[62]). His Honour went on to say (at J[63]):

In Roster Rule 1, the phrase, “Employees shall work 1560 hours annually”, was immediately followed by the phrase, “and are available to be allocated to shifts in accordance with the roster”. The Employers submit that this was a requirement that employees be available for allocation to shifts in accordance with the roster for the whole of the year, and not merely for the period before they had worked 1560 hours. That construction is consistent with the roster itself, which operated in eight-week cycles over the whole year.

33    His Honour concluded that, when regard is had to cl 16 of the Agreement, that was the preferable construction (J[64]).

34    The primary judge also rejected the Union’s interpretation of roster rule 4. Contrary to the Union’s submission that the guarantee of payment after the 1560-hour threshold has been reached meant that the respondents had an unconditional obligation to pay employees, his Honour held that, properly construed in the context of cl 16, it does not indicate that employees were given a choice whether to work or not. Rather, his Honour held that employees would continue to work on allocated shifts and be paid for 30 hours at the Level 1 ordinary rate and the appropriate overtime rate for each shift and the other work mentioned in the rule (J[69]).

35    His Honour considered the Union’s submission that ongoing payment of the weekly salary of 30 hours at the Level 1 ordinary rate after 1560 hours related to work already performed and therefore that “the bargain struck was 1560 hours in return for a salary of 30 hours at the Level 1 ordinary rate per week for 52 weeks per year” (J[73]). His Honour said (at J[74]) that this was not entirely accurate because:

The Union’s characterisation of the basis of payment of the 30 hours at the Level 1 ordinary rate after 1560 hours had been reached is partly, but not entirely, accurate. Roster Rules 1, 3 and 4 were part of an overall scheme that provided employees with certainty as to their minimum weekly income for the whole of the year and employers with certainty as to the supply of labour. Accordingly, while payment of 30 hours at the Level 1 ordinary rate after 1560 hours is, in a sense, capable of attribution to work already performed, that does not reflect the whole of the bargain struck. The bargain consists of the overall scheme that was agreed, including the spreading apart of the employees’ wages over the whole year and employees making themselves available to work for the whole of the year.

36    His Honour was satisfied that the Agreement required employees to work their allocated shifts both before and after they had reached the 1560-hour mark in any one year (at J[77]), adding:

The … Agreement does not indicate any intention to abrogate the common law principle under which payment of wages is conditional upon performance of work assigned or, at least, a readiness and willingness to do so. Clause 16 is of particular importance in arriving at this conclusion.

37    His Honour went on to explain that cl 16.1 allowed the Employers to roster and allocate employees in accordance with the arrangements in the Agreement and cl 16.2 “created a corresponding obligation on employees to work in accordance with those arrangements”, one of which (contained in roster rule 1) was that employees were available to be allocated shifts in accordance with the roster (at J[78]).

38    His Honour also pointed to the words “at all times” in cl 16.1, observing that they were “consistent with the employees’ obligation under cl 16.2 applying throughout the year” and “entirely inconsistent” with the Union’s argument that employees were only obliged to work in the period before they reached 1560 hours (J[79]). He considered that the need for the respondents to have flexibility in rostering and allocating work, recognised in cl 16.1, was also inconsistent with the Union’s argument (J[80]). In addition, his Honour referred to the guarantee imposed on the parties by cl 16.13 to provide sufficient employees to conduct all operations when required by the respondents and for employees to make themselves available as required by the respondents, observing that the Union could not have given that guarantee if it were intended that employees who had worked 1560 hours were then entitled to refuse some or all work for the rest of the year (J[81]). He said that the guarantee that employees were available to conduct operations as required was inconsistent with the notion that those who reached 1560 hours were then free to refuse to work (J[81]). His Honour further observed that cl 17, which provided that employees may be required to work a reasonable amount of overtime to meet occupational requirements, was consistent with cl 16.13 and did not exempt employees who had worked more than 1560 hours (J[84]).

39    Noting that each of the employees from whom the respondents withheld payments had failed or refused to work their allocated shifts, his Honour remarked (at J[82]):

The Union’s argument must be not merely that employees who had reached 1560 hours were free to refuse allocation to shifts, but that they were free to refuse to work even after they had been allocated shifts. However, cl 16.2 required employees to, “work in accordance with the arrangements detailed in the following sub-sections and the roster and related rules in Schedule 4”. Roster Rule 1 required that the Employees “be available to be allocated to shifts in accordance with the roster”. Accordingly, they were required to work in accordance with the rosters and the allocations determined by the Employers under cl 16.1.

40    His Honour considered that the Union’s submission was also inconsistent with the requirement for employees to work the shifts to which they had been rostered both before and after they had worked 1560 hours in cll 16.4 and 16.5 and the reference in cl 16.9 to work “on a voluntary basis” in certain circumstances without any “similar reference for employees who had worked more than 1560 hours as might have been expected if their work was to be voluntary” (J[83]). Similarly, his Honour contrasted the requirement in cl 16.7 for employees who were unable to attend work for an allocated shift to notify their employer as soon as practicable with the absence of a corresponding provision requiring notification by employees who had reached 1560 hours and did not wish to work an allocated shift. He also pointed to the fact that cl 16.18 provided for consequences for an employee who failed to give notice of their inability to attend for work before the allocated shift was due to commence but made no distinction between employees who had not worked more than 1560 hours and those who had (J[83]).

41    At J[85] his Honour said:

It is quite improbable that the parties intended that an employee could simply choose whether or not to work on any allocated shift for the rest of the year after working 1560 hours. That would not have made industrial sense because the Employers would have been left without assurance of having an adequate number of employees for any shift towards the end of the year. It would be inconsistent with cl 5.1 of the … Agreement, which stated that, “the Parties’ intent [is] to establish employment arrangements that enable the Company to successfully establish grow and maintain world-class terminal operations”. It would be inconsistent with cl 16.13 because the Union could not, “guarantee to provide sufficient employees to conduct all operations when required by the Company”.

42    His Honour accepted that there might be occasions when employees were rostered on and ready and willing to work but did not do any work, such as where shifts were cancelled under roster rule 11, but were nevertheless entitled to receive payment at the full Level 1 ordinary rate for those shifts (J[87]). Yet his Honour went on to say (at J[88]–[89]):

[T]he common law principle that payment of wages is conditional upon at least readiness and willingness to perform work is unlikely to have been abrogated without clear expression of that intention. The 2015 Agreement does not express any such intention, and, in fact, there are substantial indications to the contrary. Accordingly, the 2015 Agreement must be construed such that where a shift was allocated to the employee who had already worked 1560 hours, they were only entitled to the payment of the full 30 hours at the Level 1 ordinary rate each week if they performed their allocated work, or were at least ready and willing to perform that work.

The same applies to the Port Botany Employees for whom the 1560 hours under Schedule 4 of the 2015 Agreement was varied to 1501 hours.

43    Consequently, his Honour held that s 470(1) prohibited the respondents from paying the relevant employees for the periods in question and s 471(4) authorised them to withhold such payments for each shift when the employees took protected industrial action.

The appeal

44    There were two grounds of appeal. The first challenged the primary judge’s construction of the Roster Rules, the second his construction and application of ss 470(1) and 471(4).

45    The substance of the complaint in ground 1 is that:

(a)    his Honour’s interpretation of roster rule 4 was contrary to “the plain reading” of the rule in its immediate context and the Agreement as a whole;

(b)    his Honour erroneously introduced an unnecessary gloss on the words of the text by holding in J[88] that “where a shift was allocated to the employee who had already worked 1560 hours, they were only entitled to payment … if they performed their allocated work, or were at least ready and willing to perform that work” (emphasis added);

(c)    his Honour erroneously concluded that there was a common law principle under which payment of wages was conditional upon performance of work or, at least, a readiness and willingness to work and applied that principle to the construction of the Agreement (at J[77] and [78]);

(d)    the Union’s construction “avoids the absurd, unreasonable and industrially and commercially unsound result that employees are not paid for work done”;

(e)    his Honour’s construction imposed an obligation on the employee to be ready and available to perform work but no cognate obligation on the employer to provide work (J[88]) and, in any event, erroneously conflated an obligation to perform further work after the performance of the annual hours and the remuneration payable for work performed in excess of those hours (at J[68]).

46    The substance of the complaint in ground 2 is that:

(a)    ss 470(1) and 471(4) did not apply to the relevant employees because the pay that was withheld from them was not “in relation to the total duration of the industrial action on that day” but in relation to the work done before the day(s) of the industrial action; and, in any case,

(b)    s 471(4) did not apply because the notice was defective in that:

(i)    it did not specify that the employees were not entitled to “any payment for any day” of the partial work bans and the disputed payments were not payments for those days but for work done beforehand; and

(ii)    it did not comply with the requirements of reg 3.23(2)(b) or (c).

47    No submissions were made in support of the allegation that s 471(4) did not apply because the notice was defective. So I take it that that aspect of the appeal was not pressed.

48    By a notice of contention the respondents contended that the payments claimed by the Union were payments in relation to the duration of the protected industrial action in which the employees engaged and therefore were prohibited by s 470 and were payments to which the employees were not entitled under s 471(4).

Did the primary judge misconstrue the Agreement?

49    There was no dispute about the relevant principles governing the construction of an enterprise agreement. As the primary judge observed, they were summarised by the Full Court in WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]:

The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “turns on the language of the particular agreement, understood in the light of its industrial context and purpose”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.

(Citations omitted.)

50    “Context” includes, but is not confined to, the entire agreement of which the particular clause or clauses under consideration are a part: James Cook University v Ridd (2020) 278 FCR 566 at [65(iii)] (Griffiths and SC Derrington JJ).

51    The primary judge applied these principles. With one minor qualification, his Honour’s conclusion is correct. As the respondents submitted, the Union’s argument is inconsistent with the requisite purposive approach to interpretation and at odds with the terms of the Agreement when read as a whole.

52    I reject the Union’s first contention that his Honour’s interpretation of roster rule 4 was contrary to the plain reading of the rule in its immediate context and the Agreement as a whole. For the reasons his Honour gave, it conformed to such a reading.

53    It is true, as the Union submitted, that roster rule 1 does not explicitly oblige employees to be available to work more than 1560 hours. But like the words used in the other Roster Rules, the words used in roster rule 1 must be read in context and having regard to the Agreement as a whole — as his Honour did. The Union also submitted that only the “plus” amounts referred to in Roster Rules 3 and 4 were dependent on the performance of work. I agree with the respondents that it would be a narrow and pedantic approach to read those rules in that way. Rules 3 and 4 cannot be read in isolation from rule 1 and cl 16, as the Roster Rules are additional to the allocation and working arrangements detailed in cl 16. Rule 1 imposes the obligation to work a minimum of 1560 hours a year and to be available for allocation to shifts for which employees will only be paid if they attend for work on their allocated shifts.

54    Furthermore, I reject the Union’s second contention that his Honour erroneously introduced an unnecessary gloss on the text by holding (at J[88]) that an employee who had already worked 1560 hours was only entitled to payment for any additional shifts allocated to them “if they performed their allocated work, or were at least ready and willing to perform that work”. Roster rule 4 provided that an employee who had met the 1560-hour threshold was to be paid “for each shift worked in the week, plus any extensions or preparatory/closing work performed during the week”. That is consistent with cl 15.6, which provided for payment for “extensions at any time, or for additional shifts worked by employees after the required annual roster hours at the secondary time rate applicable to the Level for the role performed on the extension or additional shift concerned …” (emphasis added).

55    The Union’s third contention is misconceived. The common law principle is well established and his Honour did not misunderstand it.

56    The position at common law was, as Rogers J put it in Csomore v Public Service Board (NSW) (1986) 10 NSWLR 587 (Csomore) and cited with evident approval by Marshall and Cowdroy JJ in Coal and Allied Mining Services Pty Ltd v MacPherson (2010) 185 FCR 383 (MacPherson) at [18]–[19]:

As Rogers J said in Csomore v Public Service Board (NSW) (1986) 10 NSWLR 587 at 595:

Unless an employer waives the usual requirement of a contract of employment that an employee perform the full range of work properly assigned to him or unless the award under which the employee works makes a contrary provision, payment of wages is conditional upon performance by the employee of the full range of work assigned or, at least, a readiness and willingness to do so.

At 597, Rogers J referred to the failure of the relevant employees “to render substantial performance” involving “a refusal to carry out a substantial part of their duties. The right to deduct pay in such circumstances was described by his Honour as “the common law principle”, which was not displaced by an industrial instrument or a statute.

(Emphasis added.)

See, too, Buchanan J at [81]–[82].

57    In the present case, the primary judge held that the common law principle was not displaced by the relevant industrial instrument, namely, the Agreement.

58    Similarly, in MacPherson at [66] Buchanan J wrote (citations omitted):

Normally, the exchange of work for pay represents the fundamental consideration provided by parties to a contract of employment. Attendance at work as required under a contract of employment, and in accordance with the lawful instructions of an employer, is a basic common law obligation. Refusal to comply with such an obligation provides grounds for dismissal at common law … Furthermore, a right to payment normally depends on actual service, not mere preparedness to serve …

59    His Honour referred at [77] to the comments of Fisher P in Spotless Catering Services Ltd v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1988) 25 IR 255 at 262:

There can be no doubt that where employees are not ready, able and willing to perform their ordinary duties as directed, that they are thereby disentitled to payment. When such a situation occurs an employer has a wide discretion as to how he may react. The employer is entitled to take steps to exclude employees from the premises or to take other steps to close the operations down as suggested in this case by the union.

60    It is true, as Buchanan J remarked in MacPherson at [95] and the Union emphasised in argument in the present case, that “the common law position must yield to the superior force of any statute or statutory instrument”. Contrary to the Union’s contention, however, the primary judge did not apply the common law principle to the construction of the Agreement. Rather, his Honour acknowledged the common law principle and considered whether either the statute or the Agreement operated so as to remove the common law principle (particularly at J[88]), just as Marshall and Cowdroy JJ and Buchanan J did in MacPherson (at [32] and [97]ff respectively). His focus throughout was on the meaning of the words used in the Agreement. As the Full Court determined in MacPherson in relation to Div 7 of Pt 12 of the Workplace Relations Act 1996 (Cth), in the present case the primary judge held that the Agreement did not evince an intention to provide for the payment of wages irrespective of the performance of work.

61    MacPherson was an appeal from a judgment of the Federal Magistrates Court which declared that the appellant (Coal and Allied) had stood down Mr McPherson in breach of s 691 of the WR Act. Mr McPherson cross-appealed from the magistrate’s refusal to order compensation for wages lost as a result of the breach and also alleged that Mr McPherson was entitled to be paid for a shift he did not work by reason of the operation of a certified agreement that applied to his employment (MacPherson at [1]).

62    In MacPherson at [32] Marshall and Cowdroy JJ said:

If Div 7 had intended to remove from an employer a common law right to decline to provide work to an employee when that employee refused to perform a substantial part of his or her duties, it would have made that very clear. Parliament has not expressed such intention …

63    The same must be said of Div 9 of Pt 3-3 of the FW Act.

64    In MacPherson at [105] Buchanan J cited with approval the following statement by Ryan J in United Firefighters United Firefighters’ Union of Australia v Metropolitan Fire Brigades Board (1998) 86 IR 340 at 355:

[A] statute or award is not to be construed as taking away the employer’s right acknowledged by the common law to withhold payment of wages for periods of non-performance of duty unless the language of the award or other statutory instrument intractably compels such a construction.

65    Later, at [116] Buchanan J observed that the right to deny payment had to be “tested against the proper construction of the Agreement”, precisely as the primary judge did in the present case. Buchanan J went on to determine that it was “clear from the structure of the Agreement that payment depends on performance of work or authorised leave with pay” and that other absences were unpaid. His Honour continued:

In order to successfully claim payment for periods where no work was performed, and which were not authorised paid leave, Mr MacPherson would need to show that he was ready, willing and able to perform his duties without restriction.

66    The approach taken by the primary judge in the present case was not materially different. That is apparent from his Honour’s statement at J[88] that “the common law principle that payment of wages is conditional upon at least readiness and willingness to perform work is unlikely to have been abrogated without clear expression of that intention”.

67    Contrary to the Union’s submission, the primary judge was not deflected from the task of construction by the “common law principle”. His Honour’s focus throughout was on the Agreement. He examined the terms of the Agreement upon which the Union relied and considered them in the context of the Agreement as a whole and in light of its industrial context and purpose. One of the relevant contextual matters was the common law principle. Deane J observed in Gapes v Commercial Bank of Australia Ltd (1980) 41 FLR 27 at 34 that “it is, of course, true that an award will ordinarily operate within the general context of the law of master and servant”. The same is also true of an enterprise agreement.

68    The primary judge’s process of reasoning was entirely orthodox.

69    Moreover, the concept of readiness to work is not merely a common law concept. It is expressly incorporated in the Agreement by cl 14.4 which begins with the sentence:

Employees will be ready to commence work at the designated point at each work area/site at the commencement of their shift.

70    For these reasons I also reject the Union’s submission that his Honour’s interpretation adds a condition or qualification which has “no footing” in the text or context of the Agreement.

71    I also reject the Union’s fourth contention that its construction should be preferred because, unlike the primary judge’s construction, it does not deprive employees of wages for work done.

72    It is apparent from the indicative payslip for one of the employees, Andrew Malcolm, annexed to the affidavit of Warren Smith (WS11), that the wages which were withheld were wages that would have been payable for the shifts to which the employees were allocated in the period during which they took protected industrial action. It shows that he was not paid anything for eight hours not worked on those days. It will be recalled that cl 16.3 of the Agreement states that normal working shifts shall be eight hours in duration.

73    The Union argued that only the overtime (at the secondary rate) would have been affected by s 470(1) because, as the employees in question had passed the annualised hourly threshold, the protected industrial action in which they engaged was refusing to perform a period of overtime.

74    But the employees failed to turn up for work at all, contrary to the terms of the Agreement and their admitted obligation to work the allocated shifts. It is clear from cll 15.6 and 17.9 that payment for the extra hours and (hence the shifts in question) was contingent on the employees working those shifts.

75    I respectfully agree with the primary judge that Roster Rules 1, 3 and 4 were part of an overall scheme that provided employees with certainty about their minimum weekly income for the year and employers with certainty about their labour supply and that that scheme included an agreement that, in exchange for the employees making themselves available to work when required by the respondents (subject to their leave entitlements), their employers would pay them a regular amount throughout the year. The pay rates mentioned in roster rule were only payable if the employees fulfilled their part of the bargain, so to speak.

76    Finally, I reject the Union’s contention that the primary judge’s construction imposed an obligation on employees to be ready and available to perform work but no cognate obligation on the employer to provide work, pointing to his Honour’s reasons at J[88]. Nothing his Honour said in J[88] supports that contention. His Honour’s finding, contained in the last sentence, is premised on work being allocated to the employees. Nor do I accept that his Honour conflated the obligation to perform work after the threshold had been met with the remuneration payable for it.

Did the primary judge misconstrue or wrongly apply ss 470(1) and 471(4)?

77    It will be recalled that s 470(1) provides that, if an employee engaged or engages in protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day. As s 470(1) is a civil remedy provision, any employer who contravenes the section by making such a payment is liable to pay a civil penalty.

78    The Union submitted that s 470(1) does not prohibit the performance of all the obligations of an employer to an employee for the duration of the industrial action on a particular day, only “a payment to an employee to recoup, in whole or in part, what would have been payable to the employee had the employee worked during the period of industrial action”, citing Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619 (Mammoet). at [42], [49]–[50] (Crennan, Kiefel, Bell, Gageler and Keane JJ). The payment captured by s 470(1) and, to the extent it applied, s 471(1)), the Union continued, is a payment that would have been earned by work that would have been performed by an employee if he or she had not taken protected industrial action. The purpose is to “to prohibit ‘strike pay’, that is, payments by an employer to ‘make up’, in whole or in part, wages not earned by the employee during the period of industrial action”: Mammoet at [51]–[52]. The relationship between payment and industrial action with which s 470(1) is concerned “is that the non-performance of work by the employee is the occasion of the proscribed payment”: Mammoet at [52].

79    So much must be accepted. Contrary to the Union’s submission, however, the payments the respondents withheld from the relevant employees were payments which are proscribed by s 470(1) because they would have been payments to the employees in relation to the total duration of the industrial action. The payments were proscribed because they related to the employees’ refusal to perform work during the period of the industrial action. It is abundantly clear that the respondents only withheld payment for that reason. To adopt the language used in Mammoet at [52], the payments were proscribed because they were occasioned by the non-performance of work by the employees.

80    I do not accept the Union’s submission that the payments which were withheld were not payments in relation to the duration of the industrial action because they were payments in relation to work already performed. Absent the industrial action, the employees would have been paid at the Level 1 ordinary rate regardless of whether they were rostered to work. The effect of s 470, however, is that, once they were rostered for work and refused to work a rostered shift, their employers were prohibited from making those payments for the total duration of the industrial action.

81    As the respondents required the relevant employees to work the shifts to which they were allocated, the effect of s 470(4) is that the payments were prohibited by s 470 unless their refusal to work those shifts was not a contravention of their obligations under the Agreement. Clause 16.2 imposed an obligation on employees to work in accordance with the arrangements in the following subclauses and the roster and related rules in Sch 4. Roster rule 1 imposed an obligation on the employees to make themselves available for allocation to shifts in accordance with the roster. Clause 17.2 expressly contemplated that employees might be required to work a reasonable amount of overtime to meet operational requirements. The Union never suggested that the allocation of the shifts the employees refused to work was not reasonable. In these circumstances, the employees’ refusal to work the shifts allocated to them in the relevant period was a contravention of their obligations under the Agreement. It follows that s 470 applied (see s 470(3)(a) and s 470(4)(c)). It also follows that “the total duration of the industrial action is, or includes, the period of overtime to which the ban applies” (see s 470(5)).

82    As it was an undisputed fact that the relevant employees refused to work the shifts to which they were allocated on the days in question, however, the protected industrial action was not a “partial work ban” within the meaning of s 470(3). Accordingly, s 471(4) did not apply. For this reason, his Honour was wrong to adopt the respondents’ contention that they were authorised by s 471(4) to withhold payments for the shifts the employees affected by their industrial action. But nothing turns on the error. Section 470(1) prohibited them from making the payments.

Conclusion

83    The appeal should be dismissed.

84    Since the respondents did not seek or foreshadow a claim for costs in the event that the appeal was unsuccessful and s 570 of the FW Act limits the circumstances in which the Court can award costs in a matter arising under the Act, there should be no order as to costs.

Associate:

Dated:    25 February 2025

REASONS FOR JUDGMENT

RAPER J:

85    The Fair Work Act 2009 (Cth) prohibits employers from paying employees for the period they are on strike in certain circumstances. This appeal concerns whether, despite the employees engaging in protected industrial action (and being on strike), they were still entitled to be paid (and their employers were not prohibited from paying to them) certain payments.

86    Between 12 and 19 June 2021, the relevant employees, took protected industrial action by failing or refusing to work their allocated shifts. Those employees are members of the appellant industrial organisation (the Union) and are employed by Sydney International Container Terminals Pty Ltd (the first respondent) and Brisbane Container Terminals Pty Ltd (the second respondent) (collectively, the employers), at Port Botany Terminal and Port of Brisbane Terminal. The employees were not paid any payment during the relevant pay periods. The employees claimed, before the primary judge, that they were entitled to certain payments. The primary judge determined, among other things, that SCT and BCT were prohibited from making the claimed payments, because they were payments “in relation to the total duration of the industrial action on that day”, under s 470(1) of the FW Act: Construction, Forestry and Maritime Employees Union v Sydney International Container Terminals Pty Ltd [2024] FCA 490 (PJ).

87    The primary issue below and on appeal concerns whether the payment the employees claim they should have been paid, would comprise a “payment to an employee in relation to the total duration of the industrial action on that day” and therefore the employers were prohibited making such a payment.

88    At trial the Union contended that, the particular terms of the relevant enterprise agreement (the Sydney International Container Terminals Pty Limited and Brisbane Container Terminals Pty Limited and Maritime Union of Australia Enterprise Agreement 2015) meant that after the employees had worked 1560 hours in that year, the employees were under no obligation to perform any further work during the remainder of the year and were therefore entitled to payment of 30 hours per week at the Level 1 ordinary rate for the remainder of the year regardless of whether they performed any work or were ready and willing to do so (and therefore despite the fact they had gone on strike): PJ[47]. As a consequence, the Union contended that given this entitlement, the payment of 30 hours per week at the Level 1 ordinary rate, was not a payment of the kind prohibited under s 470(1): PJ[48].

89    The primary judge determined the case through the prism (then) urged upon him by the parties, namely the question of whether the employers were required, by s 470(1) to refuse to make the payments, hinged on how the agreement was to be construed: whether the employees were entitled to be paid 30 hours per week at the Level 1 ordinary rate irrespective of whether they performed any work or were ready and willing to do so: PJ[43].

90    It was not in dispute before the primary judge that the employees did not work and were not ready or willing to work on the shifts to which they had been allocated when they took protected industrial action: PJ[44(2)]. The primary judge also found that the employees were required to work according to the roster (even after working 1560 annual hours) and the payment they received after achieving that milestone, was in part for working according to the roster that week and where the bargain included the “spreading apart of the employees’ wages over the whole year and the employees making themselves available to work for the whole of the year”: PJ[74]–[87]. As a consequence, the primary judge found that the employers were required by s 470, and authorised by s 471(4), to refuse to pay the employees in relation to the periods of the protected industrial action: PJ[90].

91    The case, on appeal, is markedly different from how it was argued before the primary judge in three respects: First, it is clear from what the primary judge found (and was apparently agitated by the parties) that the relevant industrial action comprised a failure or refusal to work as directed and accordingly the only section of Part 3-3 of the FW Act engaged was s 470 and not s 471 (which involved partial work bans). This confines the issue of construction to s 470 of the FW Act. Secondly, the Union argued below that, after the employees had worked 1560 hours in a year, there was no obligation for them to attend work. The Union did not appeal the primary judge’s finding that despite the employees having worked more than 1560 hours in the year, they were obliged to attend work. Rather it was said that whilst they were required to attend to work reasonable additional hours as rostered, even if they did not attend, they were still entitled to be paid the Level 1 ordinary rate for 30 hours. Thirdly, the employers now contend, by their notice of contention, that regardless of whether the Union is correct on its construction of the agreement (whether the employees were entitled to be paid the Level 1 ordinary rate for 30 hours regardless of whether they worked), the payment was nonetheless prohibited by operation of s 470(1).

92    For the reasons which follow, I agree, as the employers contend, by their notice of contention, that regardless of how one construes the obligation under the agreement to pay the employees the Level 1 ordinary rate for 30 hours (whether they attend work or not), the payment (had it been made) was still “in relation to the total duration of the industrial action on that day” and therefore prohibited by s 470(1).

Regardless of whether the payment was for past performance, it was still in relation to the total duration of the industrial action on that day and therefore prohibited by s 470(1)

93    The Union contends that the portion of the payment (representative of the Level 1 ordinary rate for 30 hours that week) is not captured by s 470(1) as it was a payment for which the employees were entitled (and had earned by past performance) and was not in relation to the “total duration of the industrial action on that day”. This was said to be so because once the relevant employees had worked 1560 hours in the year, the employees were entitled to be paid the Level 1 ordinary rate for 30 hours a week, and whilst they were obliged to work reasonable additional hours as rostered (a position different from that taken below), the weekly payment they received for doing so was in part for work already performed (the Level 1 rate for 30 hours) and then in part for work they performed that week (payment for the additional shift at the secondary rate). The Union argued that, when the employees refused to work, and took protected industrial action, they were refusing to perform “overtime work” but remained entitled to be paid the Level 1 ordinary rate for 30 hours a week (for past performance). The making of this payment was said not to be prohibited by s 470(1) because the payment was not “in relation to the total duration of the industrial action on that day” but for past performance. Accordingly, the Union’s challenge to the primary judge’s conclusion (that the payment was prohibited by operation of s 470(1) related to the primary judge’s characterisation of the payment made.

94    The employers contend that any payment under Roster Rule 3 or 4 of the agreement (extracted below) is such a payment including payment of 30 hours at the Level 1 ordinary rate. The payments are made “each week”. According to the employers, the payments claimed by the Union are payments that would be made in relation to the time on which the employees who had been allocated shifts to work were engaged in protected industrial action. Therefore, those payments are prohibited. The employers’ contention is the preferrable one.

95    In order to determine whether the “payment” of 30 hours at the Level 1 ordinary rate, constituted a “payment in relation to the total duration of the industrial action on that day” requires a consideration of the statutory text, its context and purpose: Federal Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; 250 CLR 523 at [47].

96    Integral to the industrial system, is the capacity for employees and employers to collectively bargain, at an enterprise level to achieve productivity and fairness, as recognised within the FW Act’s objects: s 3(f). An aspect of “collective bargaining” recognised by the FW Act includes the capacity for employees and employers to take forms of industrial action (as defined in s 19). Part 3-3 of the FW Act regulates and effectively restricts when and how industrial action may be taken and what the consequences will be if “industrial action” is taken.

97    Different rights and obligations arise depending on whether the industrial action taken is “protected” or “unprotected” within the meaning of the FW Act. For industrial action to be “protected” (and for which then no action lies) various statutory conditions must be met, including, amongst other things, that the action relates to the negotiation of a proposed enterprise agreement and appropriate notice is given to the employer of the proposed action. In this case, there was no dispute that the industrial action taken by the employees was protected industrial action.

98    The delineation between “protected” and “unprotected” industrial action under the FW Act bespeaks the broad purpose of the Part. The FW Act restricts the circumstances in which industrial action may be taken and makes clear that the industrial action’s purpose must be aligned with supporting or advancing claims in relation to particular kinds of collective agreements. “Protected industrial action” is defined in s 408 and includes particular action that may be taken by either employees or employers. The action will only be protected if it conforms with “common requirements’ stipulated in s 413, which include the provision of notice and that the persons organising or engaging in the industrial action must be genuinely trying to reach agreement. If the industrial action is not “protected industrial action”, the Fair Work Commission is compelled, by mandatory command, to make orders stopping that action, either on its own initiative or by application: s 418. The Act also provides that protected industrial action must or may be suspended or terminated for other reasons including where the action endangers the life, personal safety or health, or welfare of a population or causes significant damage to the Australian economy or an important part of it: s 424.

99    However, the FW Act makes very clear, that even where the industrial action is protected, a direct consequence of the taking of that action, is the restriction on the payment that can be made to employees. However, the fact of and degree of restriction is dependent on the kind of “industrial action” taken.

100    Industrial action is defined in s 19 to include, inter alia, a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all: s 19(1)(c). In this case, the employees failed or refused to attend for work. This characterisation of the form of industrial action under the FW Act is material because it then determines, as prescribed in Div 9, the applicable restrictions on payments to employees relating to periods of industrial action.

101    Division 9 of Part 3-3 regulates the payments that may and may not be made to employees “relating to periods of industrial action”. Sub-division A concerns the payments “not to be made relating to certain periods of [protected] industrial action” and sub-division B concerns the payments “not to be made relating to certain periods of [unprotected] industrial action”. Before considering sub-division A, given this case, involves protected industrial action, it is worthwhile understanding the provisions within their historical legislative context.

102    Between 1979 and 1996, there was no prohibition on the payment of strike pay but there were other legislative measures which restricted the provision of strike pay. By s 25A of the Conciliation and Arbitration Act 1904 (Cth), (incorporating an amendment made as a consequence of the passing of the Conciliation and Arbitration Amendment Act 1979 (Cth)) the Commission was not empowered to make an industrial award, certify a memorandum of agreement, make a recommendation or take any other action, whether by conciliation or arbitration, “in respect of a claim for the making of a payment to employees in respect of a period during which those employees were engaged in industrial action. An impetus for this provision may have been the case of Gapes v Commercial Bank of Australia Ltd (1980) 41 FLR 27, in which an employee was successful in arguing that the relevant Award created an unconditional obligation to pay the relevant salary and therefore wages could not be deducted when the employee took part in an industrial campaign and declined to perform certain of his duties. In the Second Reading speech, the Minister for Industrial Relations, described its purpose in this way (Australia, House of Representatives, Second Reading Speech, 20 September 1979, 1370–73):

At present the Commission may provide for payments to employees in respect of time not worked because they were engaged in industrial action. This is undesirable by any standards. Not only does it encourage irresponsible industrial action, but also it forces the employer to pay for the very disruption that puts his business at risk and damages the economic and social life of the community.

103    In the subsequent iteration of the Federal industrial legislation, the Commission was not empowered to deal with a claim for the making of a payment to employees in relation to a period “during which those employees engaged, or engages, in industrial action” unless the Commission was satisfied that the industrial action was justified by a concern on the part of employees that was (a) reasonable; (b) about their health or safety; and (c) arose in relation to matters within the reasonable responsibility of the employer concerned: s 124 of the Industrial Relations Act 1988 (Cth) (in force between 1 March 1989 and 30 December 1996).

104    Accordingly, the early provisions concerned restrictions on power to deal with disputes regarding these payments. The more direct prohibition on the practice of paying employees when they were on strike arose under s 187AA of the Workplace Relations Act 1996 (Cth) (subsequently amended and renumbered by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) as s 507) and has continued with some modification under the FW Act. Section 187AA(1) prescribed that “an employer must not make a payment to an employee in relation to a period during which the employee engaged, or engages, in industrial action”.

105    Thereafter, the WR Act as amended by the Work Choices Act, introduced a provision which was more nuanced, and stipulated (depending on the total period of the industrial action) the extent of restriction on payment. Section 507 provided that where industrial action (whether or not protected) was taken, the employer was prohibited from making a payment to the employee, where if the total duration of the industrial action on that day was less than 4 hours, a payment of 4 hours “of that day” and if the total duration of the industrial action was more than 4 hours, the total duration of the industrial action. The purpose of this provision, as with its predecessors, is to provide a disincentive to taking industrial action, and particularly so with respect to imposing stoppages for short periods, which might be at minimum cost to an employee (unless the 4 hour minimum deduction period applied) but which could be particularly unmanageable in the workplace.

106    The introduction of the provisions in the FW Act created a distinction, concerning the degree of the restriction on payment, by reference to whether the industrial action was “protected” or “unprotected” and by reference to the form of industrial action taken.

107    With respect to a circumstance where the employees engaged in protected action on a day, s 470(1) of the FW Act applies and provides:

470 Payments not to be made relating to certain periods of industrial action

(1)    If an employee engaged, or engages, in protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day.

108    This is the section that is the subject of this appeal and it therefore prohibits an employer from making a payment to an employee in relation to the total duration of protected industrial action which an employee engaged in on a day.

109    Section 470 does not apply to “partial work bans”: s 470(2). It is apparent from this case, that whilst there was reference to proposed industrial action which might comprise “partial work bans” in the statutory notices provided by the Union to the employees, the primary judge determined that the industrial action, in fact taken, comprised a failure or refusal to attend for work, such that the relevant industrial action, was subject to the prohibition under s 470(1): PJ[16], PJ[44].

110    If the industrial action comprises an “overtime ban” and the employer requested or required the employee to work the period of overtime; and the employee refused to work the period of overtime; and the refusal was a contravention of the employee’s obligations under a modern award, enterprise agreement or contract of employment, the prohibition on payment includes the period of overtime to which the ban applies: s 470(5).

111    Section 471 concerns payments relating to partial work bans and allows for the regulations to prescribe the method of calculating the reduction of payments: s 471(3). Regulation 3.23 of the Fair Work Regulations 2009 (Cth) prescribes a three-step method to work out the proportion of the reduction in the employee’s payments in the following way:

Step 1 Identify the work that an employee or a class of employees is failing or refusing to perform, or is proposing to fail or refuse to perform.

Step 2 Estimate the usual time that the employee or the class of employees would spend performing the work during a day.

Step 3 Work out the time estimated in Step 2 as a percentage of the employee’s usual hours of work for a day.

The solution is the proportion by which the employee’s payment will be reduced for a day.

112    This provision, reinforces the intention of the legislative scheme: The focus, like that of s 470(1), is on what work would have been performed and what payment would have been made, not the purpose of the payment.

113    Section 473 prohibits an employee from accepting, and an employee or employee industrial organisation from asking for, a payment from an employer which would contravene s 470(1).

114    The High Court opined as to the evident purpose of the provision in Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; 248 CLR 619. That case concerned whether, when employees took protected industrial action, the employer would offend s 470, by continuing to provide them with accommodation at the mining site.

115    The plurality described the purpose of s 470(1) as being “to allocate the economic loss attributable to industrial action as between employers and employees by requiring employees to bear the burden of the loss of earnings occasioned by the industrial action and the employer to bear the burden of the loss of production.”: Mammoet at [42]. However, the plurality noted that the provision did not comprehensively address the allocation of all of the costs of industrial action nor did it prohibit the employer’s performance of the entirety of its obligations during the period of industrial action. Rather as the plurality described, s 470(1) is directed to a particular kind of transaction: a “payment to an employee” which is “in relation to the total duration of the industrial action” on a day: Mammoet at [43].

116    It is evident that the purpose is to give cause for pause before taking industrial action and to, in part, share the burden consequent upon the taking of that action as between the employee and the employer.

117    However, it is of some significance that throughout the recent legislative history that the prohibition relates to a “payment to an employee”. The adoption of such a phrase clearly indicates parliament’s intention (consistent with each previous legislative iteration) to cover a broad range of entitlements which include wages, incentive-based payments and bonuses, loadings, monetary allowances, overtime and leave payments. There are aspects of many of each of these entitlements that arise from (or in combination of) past, current and future performance of work.

118    As observed by the plurality in Mammoet, at [48], as to what constituted the true construction of “payment” within the meaning s 470(1), being a payment of money, such a construction is affirmed by the character of s 470(1) as a civil remedy provision, given:

It is only a transaction which answers the description of “a payment to an employee” which attracts the penalty imposed. Like the imposition of criminal liability, the imposition of a civil penalty should be “certain and its reach ascertainable by those who are subject to it”. That general principle of statutory construction is reinforced in this case by the expressly articulated object of the Act to provide “clear rules governing industrial action”.

(footnotes omitted)

119    By corollary, this reasoning tells against the acceptance of the Union’s construction. Such a construction would require that there be analysis of each source of the entitlement making up the payment and a splitting of the payment. It would create uncertainty and goes against both indications as to the breadth of the provision by the use of “payment” and the deployment of the broad connecting phrase “in relation to”. Further, if this had been parliament’s intention, to limit the payments that were caught by the restriction, it would have included in s 470(1), the phrase used in s 323(1) (which requires that employee be paid), “in relation to the performance of work”.

120    Parliament’s use of the word “payment” and omission of the words “in relation to the performance of work” coheres with its choice of the connecting phrase “in relation to” in the provision. The deployment of this phrase was deliberate and is necessarily of broad import. Such an expression is not to be regarded as ambiguous but rather of indicating a connection or relationship between one subject and another, “capable of a wide range of applications”: Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203; 163 FCR 414 at [106].

121    This breadth ensures that s 470(1) confronts the mischief sought to be addressed by the section namely that the taking of industrial action must not be the occasion of a payment by the employer: Mammoet [51]. The section prohibits strike pay and therefore, payment for the occasion of non-performance of work.

122    As stated by the plurality (at [50]):

Section 470(1) prohibits the making of “a payment to an employee in relation to the total duration of the industrial action on that day”. That is a prohibition upon the making of a payment to recoup, in whole or in part, what would have been payable in relation to the time during which the employee engaged in industrial action had the employee worked during that period.

123    The agreement required that the employees received a weekly rate, which included the Level 1 rate for 30 hours. The agreed facts, referred to by the primary judge, at PJ[44], were as follows:

The Employees were each rostered to work an eight-hour shift on one or more of 12, 13, 14, 15, 16, 17, 18 and 19 June 2021.

The Employees took protected industrial action by failing or refusing to perform work on their rostered shifts. It follows that they were not ready and willing to perform that work.

The Employers refused to pay the Employees for eight hours at the Level 1 ordinary rate in respect of each shift they failed or refused to work.

The Port of Brisbane Employees had already worked at least 1560 hours, and the Port Botany Employees at least 1501 hours, in the year since 1 July 2020 (for convenience, I will generally only refer to 1560 hours in the balance of these reasons). [His Honour took this approach because a 2020 variation to the agreement meant the Port Botany employees only had to work 1501 hours: PJ[31]]

124    Accordingly, the relevant payment, about which the Union brings its claim, was for an eight-hour shift on one or more of the days identified when the employees engaged in industrial action.

125    The Union relied upon the payslip for Mr Malcolm which indicated that he received no payment for the four eight-hour shifts he had been rostered to work (on 15 to 18 June 2021), namely 32 hours. The payment was not to be split up. The payment was dependent on when the employee was to work and the particular rate affixed to that time period. There was a fundamental, and necessary connection between, the payment and the week for which it was to be paid. Regardless of whether one accepts the Union’s construction that the employees were entitled to be paid 30 hours at the Level 1 rate whether they attended work or not, it is clear that the “payment” was a weekly rate determined by the roster, by whether the employee had achieved 1560 annual hours (which would determine whether the weekly rate was stipulated by Roster Rule 3 or Roster Rule 4) and the work of that week.

126    The “payment” was in relation to the relevant week and therefore if paid, was a payment to recoup, in whole or in part, what would have been payable in relation to the time during which the employee engaged in industrial action had the employee worked during that period. Therefore, by application of the test espoused in Mammoet at [50], the payment is prohibited by operation of s 470.

127    Having so found this, it is strictly not necessary to deal with the Union’s arguments regarding the construction of the enterprise agreement and the application for common law principle to matters of construction. However, for the following reasons, briefly stated, I do not accept the Union’s arguments.

The agreement was not misconstrued by the primary judge

128    In any event, I do not accept that the primary judge misconstrued the agreement: Contrary to the Union’s thesis, the employees are not entitled to the Level 1 rate for 30 hours a week regardless of whether they worked as rostered for the reasons the primary judge gave. The payment was not for past performance but for working according to the roster.

129    The terms of the agreement must be construed according to their “… natural and ordinary meaning … read as a whole and in context”: City of Wanneroo v Holmes (1983) 30 IR 362 at 378–379 (French J), quoted in King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123; 308 IR 171 at [40] (Collier, Katzmann and Jackson JJ). By “context” this includes the industrial and statutory context and purpose: Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [2], [13] (Gleeson CJ and McHugh J), [114] (Kirby J); and Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; 245 IR 449 at [22] (Siopis, Buchanan and Flick JJ). The Court is required to adopt a purposive rather than a “narrow or pedantic” approach: Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); King at [42] (Collier, Katzmann and Jackson JJ).

130    According to the Union, and contrary to what the primary judge found, the employees were entitled to be paid the level 1 rate for 30 hours a week because it was a payment for work already performed (once the employee had worked 1560 hours in the year). This was said to be so by reference to cl 6.1.1 of the agreement together with Roster Rules 1 to 4. However, contrary to the Union’s submission before the primary judge, the Union accepted that, the agreement properly construed required, that despite the achievement of the 1560 annual hours, the employees had an obligation to continue to work reasonable additional hours in accordance with the roster, but if they did not work in accordance with the roster, they were still entitled to be paid for the remainder of the year in instalments of 30 hours per week at the Level 1 rate.

131    This construction was said to be supported by cl 15.6, which states:

15.6     Overtime for extensions at any time, or for additional shifts worked by employees after the required annual roster hours have been worked shall be paid at the secondary time rate applicable to the Level for the role performed on the extension or additional shift concerned, and paid in accordance with Clause 17 of this Agreement.

132    By this, the Union submitted that any shift which an employee worked, after reaching the 1560 threshold, constituted an “additional shift” and that the employees did not “quibble” with receiving the amount, at the secondary rate (prescribed in cl 15.7) for this shift but say they were entitled to be paid at the Level 1 rate for 30 hours because this was a payment for past performance. The submission was effectively that the employees were refusing “overtime”.

133    This proposition was said to be supported by reference to cl 17.9 which provided:

17.9    Extensions and hours worked beyond 1560 hours (including extensions beyond 1560) will be paid at the following multiples of the secondary time Level rate (clause 15.6 rate) appropriate to the work being performed on the overtime shift:

•    Monday to Saturday – double time

•    All shifts on a Sunday and public holiday day and evening shifts – double time and a half

•    Public holiday night shifts – triple time.

134    This was said to be so because all hours worked beyond 1560 hours, were “extensions to a shift” and would be paid according to the above-described multiples of the secondary time level rate.

135    These submissions are rejected for a number of reasons.

136    First, they do not cohere with a comprehensive reading of the agreement as a whole. The employees were entitled to a payment for a week’s work. The week’s work was as set by the roster. By clause 6 of the agreement, full time employees were engaged “for an average of 30 hours per week in accordance with Sch 4”:

6.    ENTERPRISE EMPLOYMENT

6.1    An employee covered by this Agreement will be employed as:

6.1.1     A full time employee engaged as such for an average of 30 hours per week in accordance with this Agreement in Schedule 4; or

…

137    Schedule 4 stipulated that employees were rostered according to an eight-week roster cycle - rostered to work for seven weeks and then have the eighth week off. The relevant portion of the rules (for the purpose of this appeal) are contained in Sch 4 are extracted as follows:

Roster Rules

In addition to the provisions of Clause 16 (Allocation and Working Arrangements), the following allocation rules will apply to this roster, subject to skills:

1.     Employees shall work 1560 hours annually, and are available to be allocated to shifts in accordance with the roster, subject to any agreed leave arrangements.

2.     The annual hours are based on a 30-hour week and include leave counted at 30 hours per week (annual leave) and 8 hours per day (personal leave and accrued days taken).

3.     Employees will be paid 30 hours at the Level 1 ordinary rate each week, plus any higher duties payments for any shifts worked in the week, plus any shift premiums applicable to any shifts worked in the week, plus any extensions or preparatory/closing work performed in the week, plus any leave as noted above.

4.     Once the 1560 annual hours have been worked in any year, the employee will be paid 30 hours at the Level 1 ordinary rate each week, plus the applicable overtime rate for each shift worked in the week, plus any extensions or preparatory/closing work performed during the week.

…

18.    Annual hours shall recommence and shall be zeroed on July 1 of each year.

138    As can be seen from the above, Roster Rules 3 and 4 provide for the rates of pay for “each week”. Employees were required to be remunerated, in accordance with the “rostering details set out in Sch 4” and accordingly “each week”: cl 15.1. “Shift premiums” were applied to the “ordinary rate”: cl 15.5.

139    The search for identifying the purpose of the payment must be undertaken by reference to the entire agreement comprising the entire scheme and bargain. The employees were to be paid at the Level 1 ordinary rate in accordance with the rostering details contained in Sch 4 and cl 15.1. This coheres with the employers’ submission that employees are paid a week rate for work rostered each week (not based on a notion referable to a particular number of hours but for attendance as required by the roster). The agreement should be construed in a way that “contribute[s] to a sensible industrial outcome”: Amcor at [96] (Kirby J); see also WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 at [197] (Tracey, Bromberg and Rangiah JJ); and Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182; 363 ALR 101 at [9] (Reeves, Bromberg and O'Callaghan JJ).

140    I accept, as reasoned by the primary judge, that the purpose of the scheme was to create certainty for employees as to a guaranteed minimum income each week (regardless of the hours worked) and to ensure certainty for the employees and the employers as to the availability of work and the supply of labour: PJ[65]–[66], [74].

141    Secondly, the argument conflicts with the Union’s appropriate major concession on appeal that, on a proper construction of the agreement’s terms, the employees were obliged to work reasonable additional hours according to the roster. As a consequence, any attempt to artificially break up the payment received is illogical. Such an argument cannot apply to a scheme based on regular work (according to a roster) and the receipt of a regular guaranteed (minimum) income.

142    Thirdly, it is apparent from cll 15.6 and 17.9 (read in the context of the whole of their clauses) that the employees received a payment in the form of “weekly rate” each week. When the employee had achieved 1560 hours, he or she received a “weekly rate” (at the secondary (uplifted) rate) and potentially with further multiples depending on when the shift in that week occurred (as seen by cl 17.9). Employees did not receive first the Level 1 30 rate regardless of whether he or she attended work. There is nothing in the agreement to suggest this. Further, it is inconsistent with the suggestion that there was an obligation to attend work according to a roster.

143    Fourthly, the same is clear from the payslip Mr Matthews received—the payment was not to be split up. It illustrates that Mr Matthews was to receive payment dependent on (a) when he worked; and (b) at a particular rate—that payment was part and parcel with the obligation to work according the roster. The obligation to work according to an eight-week roster cycle, created certainty as to the amount of work undertaken in any one week and also, by the agreed industrial scheme (enshrined in the agreement) the employees received certainty of income—they would receive the Level 1 rate for 30 hours a week regardless of whether they did 20 or 40 hours in that week. The quid pro quo was that once they had achieved 1560, they would receive, assuming they worked as directed, the Level 1 rate for 30 hours, at the secondary rate with additional add-ons if applicable for the rest of the year.

144    The Union alluded indirectly, in reply, to a possible unfair consequence, if the employees were not rostered after achieving 1560 hours in the year. This bald submission was made without development. Notably the same under-developed submission was made to the primary judge and was noted by him to have not being “engaged with” by the parties as to how the agreement might or might not accommodate the problem: PJ[76]. As observed by the primary judge, one possibility (for why the agreement did not refer nor cater for the circumstance) was because, as a matter of fact, it was unlikely. Further, there would be in any event numerous legal avenues, potentially open to employees, if the employers failed to roster them, given the evident intention of the agreement was that, throughout the year, the employees were engaged according to the eight-week roster cycle (where it was only contemplated that they would be rostered off for one week).

145    Fifthly, the Union overlooked cl 16 for which employees are required to work in accordance with the arrangements detailed in the clause, as well as Sch 4 and where the Union and employees guarantee to provide sufficient employees to conduct all operations when required by the employers, subject to arrangements for pre-approved leave and for public holidays as set out in the agreement: cll 16.2 and 16.13. In the trade-off to achieve the certainty of a guaranteed weekly minimum income (regardless of hours) across all employees, the employees agreed to work according to a roster. The weekly payment is the bargain for adherence to the roster regardless of whether employees had achieved 1560 hours or not.

146    Sixthly, the suggestion that employees are entitled to receive the Level 1 30 hour per week regardless of whether they work does not sit comfortably with the agreement’s provisions regarding leave. Nowhere in the agreement does it suggest that in addition to the entitlements to personal leave, compassionate leave or annual leave, an employee may be absent from work, after achieving 1560 hours, and still receive the Level 1 30 hour per week rate. Nor is anything said about, an employee being absent, being entitled to continue to accrue leave. For the Union to make reference to the fact of the applicable rate being payable, being prescribed by the FW Act is beside the point, it does not answer the fact that there appears to be a degree of prescription regarding the amount of leave to which an employee is entitled but silent on the possibility of an employee is entitled, once 1560 hours are achieved, to be entitled to a payment for 30 hours a week at the Level 1 rate regardless of whether they comply with the roster.

The primary judge did not misapply common law principle

147    Lastly, I reject the Union’s contention that the primary judge misapplied common law principle when attending to the task of construing the agreement. The Union contended that the primary judge relied upon the common law contractual conception of dual employee/employer obligation of the work/wage bargain erroneously when construing the agreement.

148    Contrary to the Union’s contention, it is evident from the primary judge’s reasons that he arrived at the result on construction without deploying the common law principle. At PJ[43], the primary judge posits the question, as urged upon him by the parties, that the gravamen of the dispute “turns on whether the 2015 Agreement should be construed such that [employees who worked in excess of their annual hours]….were entitled to be paid 30 hours per week at the Level 1 ordinary rate for the remainder of the year under Roster Rule 4 irrespective of whether they performed any work or were ready and willing to do so”. It is true that his Honour thereafter summarises the competing positions of the parties, including the employers’ argument that nothing in the agreement demonstrates an intention to abrogate the common law principle that a requirement for an employer to pay wages is conditional upon the employee’s performance of work: PJ[49]–[52]. However, it is clear that thereafter his Honour attends to the task of construction in an orthodox manner by considering in detail the relevant provisions of the agreement and makes findings as to why the agreement so construed, without deploying common law principle, does not entitle employees to payment of a salary of 30 hours at the Level 1 ordinary rate per week for 52 weeks per year regardless of whether they perform work or not. The fact that his Honour goes on to find that the agreement does not indicate any intention to abrogate the common law principle, by a distinct pathway, even if were erroneous, would not disturb the result.

Conclusion

149    For these reasons, the appeal must be dismissed.

Associate:

Dated:    25 February 2025

REASONS FOR JUDGMENT

KENNETT J:

150    The background facts, the course of these proceedings, relevant statutory provisions and relevant provisions of the Sydney International Container Terminals Pty Limited and Brisbane Container Terminals Pty Limited and Maritime Union of Australia Enterprise Agreement 2015 (the Agreement) are set out in the reasons of the other members of the Court. I will repeat them only to the extent necessary to explain why I agree with the proposed orders.

151    Each of the workers to whom this dispute relates (the workers) had reached a point where Roster Rule 4 in Schedule 4 to the Agreement applied to them. That is to say, each had passed the applicable threshold of “annual hours” (ie, hours worked since 1 July of the previous year) and was entitled to be paid:

(a)    “30 hours at the Level 1 ordinary rate [found in cl 15.4 of the Agreement] each week” (“the ordinary rate component”), plus

(b)    the applicable overtime rate (found in cl 17.9 of the Agreement) “for each shift worked in the week” (“the shifts worked component”).

152    Each of the workers took protected industrial action between 12 and 19 June 2021 by refusing to work their allocated shifts. In response to the notice of that action given by the appellant (the Union) under s 414(2) of the Fair Work Act 2009 (Cth) (the FW Act), the respondents (the employers) gave notice that if an employee took such action they would not be entitled to any payment for any day on which the action was taken. It is common ground that the employers then proceeded in accordance with that notice. In other words, as well as refusing to pay for allocated shifts that were not worked, the employers withheld payment of the ordinary rate component referred to above.

153    The Union commenced proceedings in this Court seeking declarations of contravention of provisions of the FW Act, together with orders that the employers compensate the workers by paying them the amounts that had been deducted from their pay and orders for pecuniary penalties. In their defences the employers relied on ss 470 and 471 of the FW Act. Section 471 appears to have fallen away on the basis that the relevant industrial action was not a “partial work ban”.

154    Section 470 provides as follows.

470 Payments not to be made relating to certain periods of industrial action

(1)     If an employee engaged, or engages, in protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day.

Note:     This subsection is a civil remedy provision (see Part 4-1).

(2)     However, this section does not apply to a partial work ban.

Note:     For payments relating to periods of partial work bans, see section 471.

(3)     A partial work ban is industrial action that is not:

(a)     a failure or refusal by an employee to attend for work; or

(b)     a failure or refusal by an employee who attends for work to perform any work at all; or

(c)     an overtime ban.

(4)     If the industrial action is, or includes, an overtime ban, this section does not apply, in relation to a period of overtime to which the ban applies, unless:

(a)     the employer requested or required the employee to work the period of overtime; and

(b)     the employee refused to work the period of overtime; and

(c)     the refusal was a contravention of the employee’s obligations under a modern award, enterprise agreement or contract of employment.

(5)     If:

(a)     the industrial action is, or includes, an overtime ban; and

(b)     this section applies in relation to a period of overtime to which the ban applies;

then for the purposes of this section, the total duration of the industrial action is, or includes, the period of overtime to which the ban applies.

155    The Union accepted that the shifts worked component of the workers’ wages constituted payments “in relation to the total duration of the industrial action” on the relevant days, and was therefore caught by s 470(1). The Union submitted, however, that the ordinary rate component of each worker’s pay was not a payment “in relation to” the duration of the action.

156    As the argument emerged on appeal, the Union backed away from the proposition (apparently advanced below and rejected by the primary judge) that workers who came within Roster Rule 4 had no obligation to attend or to be available for work. As I understood the argument, however, it remained the Union’s position that entitlement to be paid the ordinary rate component was not conditional on attending allocated shifts or being available for work. The ordinary rate component was said to be a payment for work already done, and therefore not a payment “in respect of” the “duration” of the relevant industrial action.

157    The Agreement clearly seeks to reconcile the employers’ wish to have a pool of skilled workers available to work when required with their employees’ need for a regular income. In this regard it addresses a feature of work on the waterfront that was historically a source of great hardship. That accommodation is manifested in the Roster Rules in Schedule 4 to the Agreement.

(a)    Rule 1 says that employees “shall work 1560 hours annually”, and “are available to be allocated to shifts in accordance with the roster”. Rule 2 says that the annual hours are “based on a 30-hour week”.

(b)    Rule 3 provides that employees are to “be paid 30 hours at the Level 1 ordinary rate each week”, plus any higher duties payments, shift premiums and various other add-ons for the shifts actually worked. Employees who are rostered on for less than 30 hours in a week will therefore still receive the basic payment of 30 hours at the Level 1 ordinary rate. On the other hand, employees who are rostered on for more than 30 hours in a week will still only receive the same basic payment. (In both situations employees will also be paid any higher duties and other add-ons applicable to the shifts that they actually work).

(c)    Employees who reach a total of 1560 hours before the end of a year are to be paid, for the remainder of the year, pursuant to Rule 4. It has been summarised above. Workers in this position have been underpaid, in the sense that they have been working more than 30 hours per week but only being paid their basic rate for 30 hours. They continue to be paid 30 hours per week at the Level 1 ordinary rate (the ordinary rate component) and they also receive “overtime” rates for the shifts that they actually work (the shifts worked component).

158    In a conceptual sense, therefore, it can be said that the ordinary rate component represents payment for work already done. It can also be accepted that an employee who is subject to Rule 4 is entitled to be paid that component for a week even if they are not rostered on for any shifts in that week. However, this second point is also true of employees to whom Rule 3 applies. More relevantly, it does not follow that the employee is entitled to receive the ordinary rate component even if they refuse to work allocated shifts. The entitlement is, in my view, conditional upon being available for work and attending allocated shifts.

159    Several aspects of the Agreement point to this conclusion.

(a)    Clause 14, which is headed “Job Manning and Work Practices”, includes the following provisions.

14.1     Levels of manning, equipment and methods of operation may be varied from time to time by the Company to reflect changes consistent with safe work practices, improved technology, and new types or machinery or systems or for any other reason subject to the obligation to consult as set out in clause 12 of this Agreement.

14.2     All employees may be utilised for any Level 1 employee duties including lashing and unlashing work and, in Brisbane, mooring/unmooring duties. Arrangements for mooring and unmooring duties are contained in Schedule 3 of this Agreement.

14.3     Employees may be transferred between all areas of operation as required during a shift to reflect operational needs, subject to all rest periods being adhered to.

14.4     Employees will be ready to commence work at the designated point at each work area / site at the commencement of their shift. When on the job, work will continue until five minutes before the end of the shift. Meal breaks will be inclusive of any walking or washing time. Work will cease at the commencement time for the break and resume immediately following the break.

(b)    Clause 16.1 provides that the employer “will at all times be able to roster and allocate any employee individually in a flexible manner in accordance with the arrangements in this Agreement” (emphasis added). Correspondingly, cl 16.2 provides that employees “shall work” in accordance with the arrangements described in the remainder of cl 16 and in Schedule 4.

(c)    Clause 16.9 specifically provides for a circumstance in which work is “voluntary”: when an employee has been allocated to a day off but is asked at short notice to provide “additional labour”. The natural implication is that at other times (ie, when an employee is allocated to a shift pursuant to the relevant roster) work is not voluntary.

(d)    By cl 16.13, the Union (being the other party to the Agreement) “and employees” guarantee “to provide sufficient employees to conduct all operations when required” by the employer, subject to pre-approved leave and public holidays.

(e)    The provisions for termination of employment (cls 6.7-6.8) and resignation (cl 6.10) stipulate periods of notice (expressed in each case as a number of “weeks”), with provision for payment in lieu of notice, and make no special provision for an employee to whom Roster Rule 4 applies. This indicates that employees in that position, like others, are expected to serve out a notice period unless it is paid out.

160    The bargain that emerges from these provisions is one in which employees have the benefit of a guaranteed minimum wage, spread evenly through the year, while the employers have the benefit of being able to deploy employees as and when their labour is needed (subject to arrangements for consultation and leave). An entitlement for an employee to whom Roster Rule 4 applies to decline to work allocated shifts, and still receive the ordinary rate component of their pay, would be inconsistent with the nature of that bargain.

161    Although the Union’s submissions in the appeal appeared to accept that employees to whom Roster Rule 4 applied had an obligation to attend allocated shifts, no real explanation was given of how such an obligation co-existed with an entitlement to receive the ordinary rate component while refusing to attend. The Agreement does not contain any express provisions for (for example) disciplinary action for unauthorised absences, or working additional hours to make up for those lost. The simplest and most plausible way to understand employees’ obligations under the Agreement is that if they refuse to work allocated shifts during a week there is to be a corresponding deduction in their pay for that week. In other words, the entitlement to receive both components of the pay referred to in Roster Rule 4 is conditioned on the employee being available (or on authorised leave) and working any shifts that are allocated.

162    The primary judge was criticised for being “distracted” by cases discussing what was described as a “common law principle” allowing an employer to deduct pay in circumstances where an employee refuses to carry out a substantial part of their duties. His Honour noted the employers’ reliance on observations in Coal & Allied Mining Services Pty Limited v MacPherson [2010] FCAFC 83; 185 FCR 383 (MacPherson), where Marshall and Cowdroy JJ (at [18]-[19]) and Buchanan J (at [81]-[82]) referred to a statement by Rogers J in Csomore v Public Service Board (NSW) (1986) 10 NSWLR 587 at 595 describing a “common law principle” that:

Unless an employer waives the usual requirement of a contract of employment that an employee perform the full range of work properly assigned to him or unless the award under which the employee works makes a contrary provision, payment of wages is conditional upon performance by the employee of the full range of work assigned or, at least, a readiness and willingness to do so.

163    Later in his reasons in the present case, the primary judge observed that the agreement did not indicate any “intention to abrogate” this “common law principle”.

164    For my own part, I have some doubt as to whether “common law principle” is the best label for what is going on here (at least if that “principle” is suggested as a freestanding rule that needs to be “abrogated”). The employment relationship is fundamentally contractual and often overlaid by statutory requirements and statutory instruments such as the Agreement. The preferable explanation may be that the courts routinely imply, as a contractual term or a term of the relevant instrument, reciprocity between the entitlement to remuneration and the performance of the employee’s duties. On that understanding, the point is one of construction. As Buchanan J put it in MacPherson at [66]:

Normally, the exchange of work for pay represents the fundamental consideration provided by parties to a contract of employment.

165    This observation does not, however, point to any material error on the part of the primary judge. The case law discussed in MacPherson points to a common (if not universal) understanding of the employment relationship that supports the construction of the Agreement outlined above. In the light of that common understanding, if the parties to an Enterprise Agreement intended to provide for an employment relationship in which entitlement to remuneration continued while attendance at work became optional, that would be expected to be made clear.

166    For these reasons, the Union’s submissions must be rejected. The entitlement of the workers to receive both components of their pay was dependent on them working their allocated shifts. Both components are therefore part of “what would have been payable in relation to the time during which the employee engaged in industrial action had the employee worked during that period” (cf Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; 248 CLR 619 at [50] (Crennan, Kiefel, Bell, Gageler and Keane JJ)) (Mammoet), payment of which was precluded by s 470(1).

167    The formulation in Mammoet suggests that the connection required by the statutory phrase “in relation to the total duration of the industrial action on that day” is a connection between the entitlement to the impugned payment and the performance of work (or availability for work) during the “duration of the industrial action”. I prefer not to express any conclusion as to whether s 470(1) applies more broadly, so as to capture an amount that becomes payable to an employee on the day of the industrial action but does not relate to the performance of work on that day.

Associate:

Dated:    25 February 2025